Should employees have a right to disconnect?

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In "Other Duties as Assigned," HR Dive's senior editor, Kate Tornone, weighs in on employment trends, compliance best practices and, of course, the situations that require you to go above and beyond your normal duties. Today: admitting that a "right-to-disconnect" bill may be just the wake-up call you needed.

There’s a bill pending in New York City that would give workers the right to ignore certain after-hours contact from employers. It’s a concept born out of our burned-out, overworked culture, and it’s no surprise that New York City may be experiencing that phenomenon in a very acute way.

There are some exemptions in the bill, like one for small employers and another for emergencies. But, generally, it forbids employers from taking adverse employment actions against workers who won’t reply to work-related texts and emails outside of their normal workday.

France adopted a similar law last year and, to be sure, the intent is admirable. I’m lucky enough to work for a company that not only doesn’t generally expect after-hours replies, but also doesn’t usually send late-night emails and texts in the first place. It’s a benefit that I really value and certainly wish for everyone who wants it. But there are some problems with the New York City legislation as proposed.

Is this the best way?

First, the big question: should we have a right to disconnect?

I’m not completely convinced we should. The ability to, on a regular basis? Yes. But a right? Well, creating a new workplace right is a big deal, for several reasons.

For one, it’s not clear whether this bill can play nice with existing federal employment law. The Fair Labor Standards Act (FLSA) requires that employees be paid for all hours worked.

Generally, those who don’t meet both a duties test and a salary threshold — nonexempt employees — are entitled to minimum wage (and any required overtime pay) for all those hours. One caveat, however: employers can disregard de minimis time — increments of work so small that they would be very difficult to track. If there’s a problem with employers contacting nonexempt employees while they’re off-the-clock and not paying them for it (which there is), the problem is with either the interpretation of de minimis or, more likely, compliance with that standard. It may sound like a simple concept that just requires a little common sense, but it has proven troublesome in practice, leading to quite a bit of litigation.

Those who do, however, meet a duties test and the law’s salary threshold are exempt from the minimum wage and overtime provisions. The idea is that exempt employees are already compensated for all the time you need them to work. Allowing exempt employees to work only their regular schedule and then refuse to respond to work outside of those hours kind of defeats one of the main purposes of these exemptions.

It’s also important to note that when we create a new right or requirement, an agency has to enforce it (or at least that’s the case with the NYC bill) and a court has to interpret it. If you think the litigation around de minimis was bad, wait until you see courts wading into the fact-specific complaints challenging each employer’s definition of “emergency.” Must it be life-and-death? Or can it merely be important for business success? Industry Dive may encourage us to disconnect, but the fact of the matter is that the company cannot compete in this unforgiving 24-hour news cycle without us occasionally chipping in outside of normal business hours. Sometimes, a source on the west coast calls you at 7 pm eastern. And sometimes somebody overturns Browning-Ferris during your company holiday party.

When your equivalent of that happens, current federal law allows you to reach out and expect a response. Employers must compensate nonexempt employees for that time, and when it comes to exempt employees, companies are presumably incentivized (with engagement and retention) to ensure that’s not happening all the time. But admittedly, that’s not always the case; market forces will not always right all wrongs, and that’s why you can't have nice things.

One final issue: Many employees aren’t going to be in a position to exercise this right unless most of their peers do, too. While the law requires that employers give new employees notice of it, in their primary language, it’s hard to imagine being a new employee (especially if there's a language barrier) and (a) fully understanding this right and (b) being willing to exercise it. And even then, it’s really only available, as so many protections are, to those who can risk retaliation, who can afford to bridge the gap between jobs while waiting for their complaint to make its way through a government agency. If the law applied to everyone equally, prohibiting employers from contacting workers during their time off, that would lessen some of these issues, but I know that sentence just took a year off your life, so I promise not to bring it up again.

But what’s the alternative?

A mandate would be a hard pill for employers to swallow, but something has to be done. There are too many employers committed to operating in a way that puts employees' physical and mental health at risk. They've decided that the ramifications are worth the results they’re getting and they’re not going to stop until they have a "better" reason.

So what’s the answer? Is it a law that somehow incentivizes employer disconnection policies, like that currently proposed around leave and flexible work arrangements? Maybe. I imagine we’ll see a few more states and cities at least take a stab at a proposal. But will the state and local backlash to White House initiatives remain long enough for these laws to take hold? That’s been the case for laws addressing other issues, but I’m not sure even our most left-leaning cities are ready for a law like this. Business representatives would undoubtedly put up a fight, like they’ve done for other initiatives, with some success.

I know how important employee protections are. But I also know about the extra hours you’re putting in to cope with all of these mandates, especially those of you with employees in multiple jurisdictions. So for the sake of the employers who are doing the right thing, I hope we find another way. I hope there’s a way to incentivize work-life balance or whatever you want to call it. Or even better, I hope the employers who are working their employees into the ground take a look at this proposal and realize that letting up will be much easier than implementing another law with affirmative requirements, trying to make sense of its exemptions and defending lawsuits alleging noncompliance.